UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31013
Summary Calendar
DEBBIE GRIFFIN,
Plaintiff-Appellant,
VERSUS
PLAZA MORTGAGE COMPANY, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Lousiana
(99-CV-3002)
May 18, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Debbie Griffin appeals the district
court’s judgment dismissing her claims against Plaza Mortgage
Company (“Plaza”) under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, and the Equal Pay Act.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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We do not reach the merits of Appellant’s case for lack of
jurisdiction.
I.
Plaza hired Debbie Griffin to establish a telemarketing
department and serve as the company’s telemarketing manager.
Timothy Smeltzer, chief executive officer of Plaza, reassigned
Griffin to direct mail marketing manager and named Keith Culpepper
as Griffin’s replacement in the telemarketing department. Griffin
filed suit in district court asserting causes of action under Title
VII, the Age Discrimination in Employment Act, and the Equal Pay
Act. Plaza filed its answer and asserted a counterclaim under
Louisiana state law. Defendants moved for summary judgment on June
14, 2000. At the conclusion of the summary judgment hearing, the
magistrate judge granted Plaza’s motion concerning Griffin’s Title
VII and ADEA claims. The court ordered the parties to file
supplemental summary judgment memoranda regarding Griffin’s Equal
Pay Act claim. After the court reviewed the parties’ supplemental
briefs, the magistrate judge entered an order granting Plaza’s
motion for summary judgment on Griffin’s Equal Pay Act cause of
action.
Griffin filed a notice of appeal on August 7, 2000. On August
9, the magistrate judge entered its judgment dismissing the causes
of action set out in Griffin’s complaint. The court did not make
a dispositive ruling as to Plaza’s state law counterclaim. The
Clerk of Court erroneously closed the record. Upon realizing that
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the district court did not certify its judgment as a final order
under Rule 54(b), the parties entered into a consent decree in
which Plaza agreed to a dismissal of its claim without prejudice in
order to ensure that the original judgment was final for purposes
of this Court’s appellate jurisdiction.
II.
As a court of limited jurisdiction, “[w]e have authority to
hear appeals only from ‘final decisions’ under 28 U.S.C. § 1291,
interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments
certified as final under Federal Rule of Civil Procedure 54(b), or
some other nonfinal order or judgment to which an exception
applies.” Briargrove Shopping Center Joint Venture v. Pilgrim
Enter., Inc., 170 F.3d 536, 538 (5th Cir. 1999). We must first
determine whether the district court’s judgment was final for
purposes of § 1291.
The litigants insist that the consent decree dismissing
Plaza’s claim without prejudice caused the district court’s
judgment disposing of Griffin’s complaint to become the final
judgment for purposes of § 1291. Federal Rule of Civil Procedure
54(b) states:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, . . . the court may direct the entry
of a final judgment as to one or more but fewer than all
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the claims . . ..
Fed. R. Civ. P. 54(b) (emphasis added). Rule 54(b) allows a
district court to certify a judgment disposing of less than all the
claims in a case as a partial final judgment. Rule 54(b) sets out
the procedure through which an order may become a final decision
under § 1291 when a case is not fully adjudicated.
The magistrate judge entered judgment dismissing Griffin’s
complaint without disposing of Plaza’s counterclaim. Therefore,
the judgment was not a final decision disposing of all the claims
and parties under § 1291. See Cold Metal Process Co. v. United
Eng’g & Foundry Co., 351 U.S. 445 (1956). The subsequent consent
decree did not transform the judgment into a final decision. See
Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998). Rule 54(b)
was Griffin’s sole basis for appeal unless some other recognized
exception applied. See id.
In order for a judgment to be final under Rule 54(b), the
judgment must ultimately dispose of an individual claim, and the
district court must expressly determine that there is no reason for
delay. See Fed. R. Civ. P. 54(b); Curtis-Wright Corp. v. General
Electric Co., 446 U.S. 1, 7-8 (1980); Pilgrim Enterprises, Inc.,
170 F.3d at 539. Although the rule requires an “express
determination that there is no reason for delay,” we have said that
a judgment satisfies the requirements of Rule 54(b) if the judgment
complies with the following standard:
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If the language in the order appealed from, either
independently or together with related portions of the
record referred to in the order, reflects the district
court’s unmistakable intent to enter a partial final
judgment under Rule 54(b), nothing else is required to
make the order appealable. We do not require the judge
to mechanically recite the words “no just reason for
delay.”
Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220
(5th Cir. 1990) (en banc). The judgment entered on August 9, 2000
did not expressly certify the judgment under Rule 54(b) or contain
language that would reflect the magistrate judge’s intent to enter
a partial final judgment. The judgment referred to the court’s
order granting Plaza’s motion for summary judgment. Like the
judgment, the order did not reveal an unmistakable intent to
certify the judgment as a partial final judgment. Therefore, the
judgment was neither a final decision under § 1291 or certified as
a partial final judgment under Rule 54(b).
The only conceivable exception to the finality requirement
that applies to Griffin’s appeal is the exception for cumulative
orders or judgments that culminate into a final decision after a
litigant files a notice of appeal. See generally 15A Charles A.
Wright, Arthur R. Miller, & Edward H. Cooper, et al., FEDERAL PRACTICE
AND PROCEDURE § 3914.9 (2d ed. 1991). Under Rule 4(a)(2) of the
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Federal Rules of Appellate Procedure, “a premature notice of appeal
relates forward to the date of entry of a final ‘judgment’ only
when the ruling designated in the notice is a [nonfinal]
‘decision.’” Firstier Mortgage Co. v. Investors Mortgage Ins. Co.,
498 U.S. 269, 274 n.4 (1991). “Rule 4(a)(2) permits a notice of
appeal from a nonfinal decision to operate as a notice of appeal
from the final judgment only when a district court announces a
decision that would be appealable if immediately followed by the
entry of judgment.” Id. at 276. See also United States v. Cooper,
135 F.3d 960, 963 (5th Cir. 1998).
Griffin filed her notice of appeal on August 7, 2000 following
the magistrate judge’s second order granting Plaza’s motion for
summary judgment. On August 9, the court entered its judgment
dismissing Griffin’s complaint. If the August 9 judgment was a
final decision, then Rule 4(a)(2) would render Griffin’s notice of
appeal timely. However, the judgment of the court was not final.
Rule 4(a)(2) therefore cannot cure Griffin’s premature notice of
appeal.
Because the consent decree had no affect on the finality of
the court’s decision and the judgment did not satisfy the
requirements of Rule 54(b), we lack jurisdiction to consider
Griffin’s appeal.
DISMISSED
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